Subject:
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Re: Custom Space: Obsidian Stealth Strike Craft for sale - The Brickee Mart
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Newsgroups:
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lugnet.off-topic.debate
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Date:
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Wed, 15 Dec 2004 01:24:41 GMT
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Highlighted:
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In lugnet.off-topic.debate, Douglas R. Clark wrote:
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In lugnet.market.buy-sell-trade, Lee Meyer wrote:
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The fact is, I have adopted design techniques and made ships that have much
in common with other peoples’ creations. I have credited some, some after
they contacted me asking if I based a design on one of their ships. I just
don’t think people are sitting around here waiting for credits when someone
else uses a technique they use. Why are we all not crediting the guy/gal
who first began SNOT every time we build a ship with SNOT techniques? How
about the guy who first used wheels as engines?
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Giving Lee the benefit of the doubt, it is clear he doesn’t understand the
difference between copying someone’s construction techniques and copying
someone else’s designs. Furthermore he does not understand the legal/moral
differences between copying a design for personal use/appreciation vs. for
profit.
Lee is trying to equate construction techniques such as SNOT or
wheels-as-engines and copying someone-else’s spaceship design. I believe
that this is clearly an incorrect interpretation. The way I see it, once
posted, a particular construction technique becomes public domain. The only
way that it wouldn’t is if the “discoverer” were to actually go through the
trouble to patent that particular parts-combination or construction method,
and I don’t know if that is actually possible.
When a person uses a set of lego elements and various construction techniques
to create a MOC the end product’s outward appearence and structure could be
considered a design. If the image/design of the end-product was an original
creation of the person’s mind, that person would then own the
intellectual-property rights to that design.
If another person created a design that closely mimic-ed the outward
appearance and general structure of the first person’s original creation
(even if internally the construction was quite unique) have they done
anything wrong? Depends. If the copy is solely for the person’s own
enjoyment to sit on their shelf or mantle, then probably not. If they post
pictures of the copy on brickshelf then I believe the community generally
agrees that the copier should give credit to the creator of the original
(possibly with links to the original work). If they try to sell it as a kit
or otherwise profit from it without prior permission of the creator of the
orignal work then I believe they are in the wrong. The really tough part of
all this is how closely does the copy have to mimic the original to be
considered a copy vs. an original work in its own right?
If the creation of the first designer was not an original idea; instead,
either a scale model of a “real-life” object or a fictional setting/vehicle
not of the MOCer’s original design then MOC creator does not have IP rights.
I am reminded of this argument over
selling a GunStar MOC that closely mimic-ed a previous GunStar MOC. In this
instance I believe that the seller would not have to obtain permission from
the first MOC’s creator. Instead the seller would have to obtain the
permission of the film company who created the movie “The Last Starfighter”,
not unlike the way Lego had to obtain a license from Lucasfilm to produce and
sell an X-wing set.
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The above is somewhat mistaken. While selling, or theoretically creating, a moc
based on a Gunstar would require the permission of the ownere (the movie company
most likely) this doesn’t mean that the first MOC maker doesn’t also have IP
here. The first MOC maker still own’s his/her design, as an expression of the
Gunstar property owned by the movie company. There are plenty of ways to build a
Gunstar MOC, so one particular design can still be protectable IP.
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I’m not sure how it would work for “real-life” vehicles/objects. I would
think that Lego had to obtain a license to produce the Ferrari sets, but
would it be necessary to obtain a license from Boeing to produce and sell a
B-52 kit?? This is where an IP lawyer would be useful.
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Lego had to, and did aquire Ferrari lisences. Yes, you would need Boeing’s
permission to create a B-52 kit. Things could get sticky in court, and you could
probably fend off a suit from Boeing if they sued you, if you could prove that
the appearance of the B-52 was in no way designed for aesthetic purposes... This
would make a good IP exam question actually...
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The next extension to this question is when a person actually creates his/her
own theme such as Chris Gidden’s PCS line or Mark Sandlin’s 3vil line. Most
people here think it is pretty cool if someone else attempts to create and
post a PCS or 3vil MOC. However if someone tries to sell a PCS or 3vil MOC I
would say you would need permission from the theme’s creators first. For
example, I have a SpacePoliceII MOC that is one of my original creations. I
would have to obtain permission from Lego to sell it as a SPII MOC since Lego
still owns the copyright to the SPII theme.
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In terms of good form, and peace in the community, I agree, but, I’m not sure
this is really true. You can’t own a visual style, it has to be a more specific
design than that. Of course, the theme names, and logos are all ownable IP.
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If Lee’s customs are base on original works of any other person/entity and
are being sold with out the original creators’ permission then Lee is
definitely in the wrong and should be educated/dealt with by bricklink admins
accordingly.
It seems to me that bricklink should already have some clause about
respecting IP rights & such when selling custom kits/instructions in their
terms of use?? If not, they probably ought to.
just my opinions,
drc
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I hope my thoughts on this are helpful.
-Dan Rubin
Disclaimer: I haven’t finished lawschool yet, but I am specializing in IP, and
have some experience in IP practice. Like any legal issue, all the issues raised
here could be debated ad naseum, and any of these cases would have to be
resolved in court, or settled out of court, on an individual basis.
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